IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.83 OF 2008
Dagadabai(Dead) by L.Rs. ….Appellant(s)
Abbas @ Gulab Rustum
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the legal representatives of the plaintiff
against the final judgment and order dated 25.04.2007 passed by the High
Court of Judicature of Bombay, Bench at Aurangabad in Second Appeal No.333
of 1990 whereby the Single Judge of the High Court while exercising
jurisdiction under Section 100 of the Code of Civil Procedure, 1908
(hereinafter referred to as “the Code”) reversed the concurrent findings of
fact arrived at by the two Courts below and dismissed the suit of the
2) We need not burden the order by setting out the facts in detail
except to the extent necessary to appreciate the short controversy involved
in the appeal.
3) The appellants are the legal representatives of the original
plaintiff whereas the respondent is the defendant.
4) The dispute in this appeal relates to an agricultural land bearing
G.No. 505 (old Sy. No 71) admeasuring 5 Hectare 28 R. situated at village
Vardi, Taluka Chopda, District Jalgao (MH) (hereinafter referred to as,
“the suit land".
5) One Rustum s/o Nathu Pinjari - a Muslim by religion was the owner of
the suit land. He died intestate leaving behind his only daughter-
Dagadabai, w/o Shaikhlal Pinjari. She, as an heir, accordingly inherited
the suit land exclusively on the death of her father- Rustum.
6) Dagadabai then filed a Civil Suit, out of which this appeal arises,
against the respondent claiming therein a decree for possession in relation
to the suit land. The plaintiff alleged that she is the owner of the suit
land whereas the defendant is in unlawful possession of the suit land
without any right, title and interest therein and, therefore, he is to be
dispossessed from the suit land. The plaintiff, therefore, as mentioned
above sought a decree for possession on the strength of her title against
7) The respondent filed his written statement. He denied the appellant’s
claim. In the first place, claiming himself to be the adopted son of Late
Rustum, the respondent contended that he became the owner of the suit land
by inheritance as an adopted son of Rustum. In the second place, he denied
the ownership of the plaintiff in the suit land and set up a plea of
adverse possession to claim his ownership over the suit land. The
respondent contended that he has been in long and continuous possession of
the suit land for more than 12 years prior to the date of filing of the
suit on the basis of mutation entries made in the revenue record in
relation to the suit land. It was alleged that he acquired title over the
suit land on the strength of his continuous possession which, according to
him, was adverse. It is essentially on these two defenses, the respondent
denied the plaintiff's case and defended his possession over the suit land.
8) The Trial Court framed issues and the parties adduced evidence. The
Trial Court, by judgment/decree dated 29.08.1983 in Civil Suit No. 108 of
1981 decreed the appellant's suit. It was held that the appellant
(plaintiff) is the owner of the suit land; defendant failed to prove his
adoption; there is no concept of adoption in Muslims and hence there could
be no valid adoption of the respondent by Rustam and nor such adoption is
recognized in Mohammadan Law; the defendant has failed to prove his title
over the suit land on the basis of his alleged possession over the suit
land; the defendant is, therefore, in illegal and unauthorized possession
of the suit land for want of any right, title and interest and hence liable
to be dispossessed from the suit land.
9) Felt aggrieved, the defendant filed first appeal before the
Additional District Judge, Amalner. Vide order dated 18.09.1990 in Civil
Appeal No.43 of 1989. The first appellate Court affirmed the judgment and
decree of the Trial Court and dismissed the appeal.
10) Felt aggrieved, the defendant carried the matter in Second Appeal
before the High Court. The High Court admitted the appeal on the following
substantial question of law:
“Whether in the facts and circumstances of the present case, the
defendant(appellant herein) perfected his title to the suit land on account
of adverse possession and the alternative plea ought to have been allowed
by the Courts below, particularly, when there were disputes regarding the
mutation proceedings after the death of Rustum Pinjari and the intention of
the defendant to get his name mutated was writ large to show his hostile
11) By impugned order, the learned Single Judge of the High Court allowed
the appeal and while setting aside the judgment/decree of the two courts
below dismissed the suit giving rise to filing of this appeal by special
leave by the plaintiff before this Court. The leave was granted.
12) Heard Mr. Anshuman Animesh, learned counsel for the appellants and
Mr. Nishant Ramakantrao Katneshwarkar, learned counsel for the respondent.
13) Having heard the learned counsel for the parties and on perusal of
the record of the case, we are inclined to allow the appeal and while
setting aside of the impugned order restore that of the Trial Court and the
first Appellate Court.
14) In our considered opinion, the High Court erred in admitting the
second appeal in the first instance and then further erred in allowing it
by answering the question framed in defendant’s favour. This we say for
more than one reason as detailed below.
15) First, when the Trial Court and the First Appellate Court
concurrently decreed the plaintiff's suit by recording all the findings of
facts against the defendant enumerated above, then, in our opinion, such
findings of facts were binding on the High Court.
16) It is also for additional reasons that the findings were neither
against the pleadings nor evidence and nor against any provisions of law.
They were also not perverse on facts to the extent that no average judicial
person could ever record. In this view of the matter, we are of the
opinion that the second appeal did not involve any question of law much
less substantial question of law within the meaning of Section 100 of the
Code to enable the High Court to admit the appeal on any such question much
less answer it in favour of the defendant.
17) Second, the question which was formulated by the High Court did not
involve any question of law much less substantial question of law within
the meaning of Section 100 of the Code requiring interference in the first
Appellate Court’s judgment.
18) Third, the plea of adverse possession being essentially a plea based
on facts, it was required to be proved by the party raising it on the basis
of proper pleadings and evidence. The burden to prove such plea was,
therefore, on the defendant who had raised it. It was, therefore, necessary
for him to have discharged the burden that laid on him in accordance with
19) When both the Courts below held and, in our view, rightly that the
defendant has failed to prove the plea of adverse possession in relation to
the suit land then such concurrent findings of fact was unimpeachable and
binding on the High Court.
20) Fourth, the High Court erred fundamentally in observing in Para 7
that, "it was not necessary for him (defendant) to first admit the
ownership of the plaintiff before raising such a plea".
21) In our considered opinion, these observations of the High Court are
against the law of adverse possession. It is a settled principle of law of
adverse possession that the person, who claims title over the property on
the strength of adverse possession and thereby wants the Court to divest
the true owner of his ownership rights over such property, is required to
prove his case only against the true owner of the property. It is equally
well-settled that such person must necessarily first admit the ownership of
the true owner over the property to the knowledge of the true owner and
secondly, the true owner has to be made a party to the suit to enable the
Court to decide the plea of adverse possession between the two rival
22) It is only thereafter and subject to proving other material
conditions with the aid of adequate evidence on the issue of actual,
peaceful, and uninterrupted continuous possession of the person over the
suit property for more than 12 years to the exclusion of true owner with
the element of hostility in asserting the rights of ownership to the
knowledge of the true owner, a case of adverse possession can be held to be
made out which, in turn, results in depriving the true owner of his
ownership rights in the property and vests ownership rights of the property
in the person who claims it.
23) In this case, we find that the defendant did not admit the
plaintiff's ownership over the suit land and, therefore, the issue of
adverse possession, in our opinion, could not have been tried successfully
at the instance of the defendant as against the plaintiff. That apart, the
defendant having claimed the ownership over the suit land by inheritance as
an adopted son of Rustum and having failed to prove this ground, he was not
entitled to claim the title by adverse possession against the plaintiff.
24) In the light of this settled legal position, the plea taken by the
defendant about the adoption for proving his ownership over the suit land
as an heir of Rustum was rightly held against him.
25) Fifth, the defendant having failed to prove that he was the adopted
son of Rustum, had no option but to suffer the decree of dispossession from
the suit land. It is a settled principle of Mohammadan Law that Mohammadan
Law does not recognize adoption (see-Section 347 of Mulla Principles of
Mahomedan Law, 20th Edition page 430).
26) It is for the aforementioned reasons, the impugned judgment is held
legally unsustainable and hence deserves to be set aside.
27) The appeal thus succeeds and is accordingly allowed. Impugned
judgment is set aside and that of the Trial Court and the first Appellate
Court is restored.
[ABHAY MANOHAR SAPRE]
April 18, 2017